THOMAS H. HISRICH, Administrаtor of the Estate of Diana Zhang, Plaintiff-Appellant, v. VOLVO CARS OF NORTH AMERICA, INC.; VOLVO NORTH AMERICA CORPORATION, Defendants-Appellees.
No. 99-3426
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued: June 21, 2000 Decided and Filed: August 31, 2000
2000 FED App. 0292P (6th Cir.) | 00a0292p.06
Before: MERRITT, GUY, and COLE, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 95-01080—Patricia A. Gaughan, District Judge.
ARGUED: James A. Lowe, LOWE, EKLUND & WAKEFIELD CO., L.P.A., Cleveland, Ohio, for Appellant. Hugh J. Bode, REMINGER & REMINGER CO., L.P.A., Cleveland, Ohio, for Appellees. ON BRIEF: James A. Lowe, LOWE, EKLUND & WAKEFIELD CO., L.P.A., Cleveland, Ohio, for Appellant. Hugh J. Bode, T. Leigh Anenson, REMINGER & REMINGER CO., L.P.A., Cleveland, Ohio, for Appellees.
COLE, J., delivered the opinion of the court, in which MERRITT, J., joined. GUY, J. (pp. 21-22), delivered a separate opinion concurring in part and dissenting in part.
OPINION
R. GUY COLE, JR., Circuit Judge. Plaintiff Thomas Hisrich, administrator of the estate of Diana Zhang, filed this products liability suit against defendants, Volvo Cars of North America, Inc. and Volvo North America Corp. (collectively “Volvo“), alleging defect in Volvo‘s airbag system. Zhang was a front-seat pаssenger in a 1993 Volvo 850 GLT (“Volvo 850“), which was involved in a low-speed collision. The Volvo 850‘s airbag deployed, striking and killing six-year-old Zhang. Plaintiff alleged that the Volvo 850‘s airbag system was defective in both its design and manufacture and in its warnings and instructions. The jury returned a verdict for Volvo, which plaintiff appeals, claiming that the district court erred by failing to instruct the jury on both the failure-to-warn defect standard and the consumer-expectation defect standard for products liability under Ohio law. For the following reasons, we REVERSE the judgment of the district court and REMAND for a new trial.
The events in this case arise from an April 22, 1993, accident in which a Volvo 850 driven by Ke Ming Li struck the rear end of a 1986 Volkswagen Golf. Li was driving home when she failed to stop as the Volkswagen in front of her slowеd to make a left turn. Li engaged her brakes, but the Volvo 850 struck the rear end of the Volkswagen at low speed, causing the Volvo 850‘s driver and front-passenger airbags to deploy. Li‘s six-year-old daughter, Zhang, was in the front-passenger seat of the Volvo 850 and was not wearing seat belt restraints. As the passenger-seat airbag deployed, the airbag and the airbag‘s module cover forcefully struck Zhang in the head and upper portion of her body, propelling the unrestrained child into the interior roof of the vehicle. Zhang died two days after the accident as a result of her injuries. Although Zhang was not wearing seat restraints, the parties stipulate that if the airbag had not deployed, Zhang would not have sustained her fatal injuries.
Plaintiff brought this diversity action,1 pursuant to
The jury trial began on February 22, 1999. Plaintiff presented evidence concerning the design and testing of the Volvo‘s airbag system. In addition, plaintiff also produced evidence concerning Volvo‘s knowledge of the risk tо unbelted children and small adults from airbag deployment.
The case proceeded to the jury with the instructions limited to the risk-benefit test for product defect, omitting the failure-to-warn test and consumer-expectation test. The jury returned a verdict for defendants on March 1, 1999, which the district court entered on March 3, 1999. Plaintiff filed a timely notice of appeal on March 29, 1999.
II. Standard of Review
Plaintiff contends that he is entitled to a new trial because the district court erred by failing to give plaintiff‘s requested jury instructions. Federal law governs our standard of review in diversity cases. See Gafford v. General Elec. Co., 997 F.2d 150, 166 (6th Cir. 1993). This court “reviews a district court‘s refusal to give requested jury instructions under an abuse of discretion standard.” King v. Ford Motor Co., 209 F.3d 886, 897 (6th Cir. 2000). We define an “abuse of
We review “jury instructions as a whole in order to determine whether the instructions adequately inform the jury of relevant considerations and provide a basis in law for aiding the jury to reach its decision.” King, 209 F.3d at 897 (internal quotations and alterations omitted). A “district court‘s refusal to give a jury instruction constitutes reversible еrror if: ‘(1) the omitted instructions are a correct statement of the law; (2) the instruction is not substantially covered by other delivered charges; (3) the failure to give the instruction impairs the requesting party‘s theory of the case.‘” Webster v. Edward D. Jones & Co., L.P., 197 F.3d 815, 820 (6th Cir. 1999) (quoting Sutkiewicz v. Monroe County Sheriff, 110 F.3d 352, 361 (6th Cir. 1997)). “A judgment may be reversed only if the instructions, viewed as a whole, were confusing, misleading, or prejudicial.” Beard v. Norwegian Caribbean Lines, 900 F.2d 71, 72-73 (6th Cir. 1990).
Plaintiff contends that the court improperly denied his requested jury instructions regarding the adequacy of Volvo‘s warnings and instructions. Plaintiff asserts that because
A. Waiver
With respect to the defendants’ waiver argument, we find that plaintiff did not waive or abandon the properly pleaded failure-to-warn claim. Although plaintiff did not include the failure-to-warn instruction in his trial brief or proposed jury instructions, he requested this instruction at the close of evidence. The district court declined to provide plaintiff‘s proposed jury instruction, but found on the record that the jury instruction was “timely requested” and considered it on the merits. Despite defendants’ arguments of prejudice and abandonment, the court did not find that the claim had been waived in reaching the merits of the proposed instruction. Moreover, defendants cite no authority which indicates that plaintiff has waived this claim by failing to give notice in the
B. Failure-to-Warn Requirements
Defendants contend that plaintiff failed to establish a failure-to-warn сlaim. The Ohio legislature has codified products liability law with respect to defects due to inadequate warnings or instructions. See
(1) [A product] is defective due to inadequate warning or instruction at the time of marketing if, when it left the control of its manufacturer, both of the following applied:
(a) The manufacturer knew or, in the exercise of reasonable care, should have known about a risk that is associated with the product and that allegedly caused harm for which the
claimant seeks to recover compensatory damages; (b) The manufacturer failed to provide the warning or instruction that a manufacturer exercising reasonable care would have provided concerning that risk, in light of the likelihood that the product would cause harm of the type for which the claimant seeks to recover compensatory damages and in light of the likely seriousness of that harm.
Under Ohio law, a plaintiff asserting a products liability “claim[] based on failure to provide adequate warnings not only must convince the fact finder that the warning provided is unreasonable, hence inadequate, but he also must establish the existence of proximate cause between the [product] and the fact of the plaintiff‘s injury.” Seley v. G.D. Searle & Co., 423 N.E.2d 831, 838 (Ohio 1981) (applying products liability law to pharmaceutical drug). “In analyzing the proximate cause issue as it relates to failure-to-warn cases,” the Ohio Supreme Court “divided proximate causation . . . into two sub-issues: (1) whether lack of adequate warnings contributed to the plaintiff‘s [use of the product], and (2) whether [use of the product] constitute[d] a proximate cause of the plaintiff‘s injury.” Id. With respect to warnings and plaintiff‘s use of the product, the Ohio Supreme Court interprets the RESTATEMENT (SECOND) OF TORTS § 402A cmt. j to
establish[] a presumption that an adequate warning, if given, will be read and heeded. In such a situation, the presumption established works to the benefit of the manufacturer. However, where no warning is given, or where an inadequate warning is given, a rebuttable
presumption arises, beneficial to the plaintiff, that the failure to adequately warn was a proximate cause of the plaintiff‘s [use of the product]. This presumption, absent the production of rebutting evidence by the defendant, is sufficient to satisfy the first branch of the plaintiff‘s proximate cause burden.
Id. at 838 (emphasis added). Thus, as here, when plaintiff alleges no warning or inadequate warning, Ohio law establishes a presumption, beneficial to the plaintiff and which the defendants must rebut, to establish proximate cause in the warning defect context.
Plaintiff‘s proposed instruction essentially set forth the requirements under
It is true that Ohio courts have found that when evidence shows that plaintiff failed to read instructions proximate cause is rebutted. See Phan v. Presrite Corp., 653 N.E.2d 708, 711 (Ohio Ct. App. 1994) (“Even if the additional warnings . . . were given, they would not have prevented the injuries because [plaintiff] read the warning . . . .“). However, the Phan court was faced with direct evidence that the plaintiff did not read the instructions. Under Ohio law, the presumption exists at the outset and accrues to the benefit of the plaintiff. See Freas v. Prater Constr. Corp., 573 N.E.2d 27, 30-31 (Ohio 1991); Seley, 423 N.E.2d at 838. Thus, it is the defendants who must establish that proximate cause is deficient by rebutting the presumption that Li read and heeded the instructions.
The district court also found that there was insufficient evidence for a jury to conclude that the provided warnings were inadequate. With respect to the sufficiency of the evidence, the defendants assert that the warnings given were adequate as a matter of law and, hence, the presumption was rebutted because plaintiff never established that the warnings were inadequate. See Seley, 423 N.E.2d at 838.
We disagree with the court‘s conclusion regarding the sufficiency of the evidence. Under Ohiо law, a warning is adequate if it reasonably discloses all inherent risks, and if the product is safe when used as directed. Crislip, 556 N.E.2d at 1180-81; Seley, 423 N.E.2d at 838. However, “[a]n inadequate warning may make a product as unreasonably dangerous as no warning at all; there is no reason to preclude
The fact finder may find a warning to be unreasonable, hence inadequate, in its factual content, its expression of the facts, or the method or form in which it is conveyed. The adequacy of such warnings is measured not only by what is stated, but also by the manner in which it is stated. A reasonable warning not only conveys a fair indication of the nature of the dangers involved, but also warns with the degree of intensity demanded by the nature of the risk. A warning may be found to be unreasonable in that it was unduly delayed, reluctant in tone or lacking in a sense of urgency. A jury may find that a warning is inadequate and unreasonable even where the existence of “risk,” i.e., a causal relationship between use of the product and resulting injury, has not been definitely established.
Seley, 423 N.E.2d at 837 (citations omitted) (emphasis added). Accordingly, there are several ways – such as lack of urgency or expression of facts – in which a warning can be defined as inadequate.
In the present case, plaintiff clearly established sufficient evidence to support the instruction under
Although Volvo repeatedly established that the vehicle contained a door warning sticker, owner‘s manual warnings, and even a videotape provided to new Volvo 850 owners which contained a warning concerning the propеr placement of children in the vehicle, the testimony of Volvo‘s design witness, Shultz, established knowledge of a specific danger -- the risk to children and small adults positioned near the airbag as it deployed -- that was not expressed in a warning. Indeed, the trial court noted Volvo‘s knowledge of existing risk in denying defendants “superseding cause” jury instruction. The trial court stated that “[i]t is clear . . . that Volvo definitely foresaw the possibility of individuals being unbelted in the front seat of the car, specifically the passenger side,” and that Volvo should not have foreseen the risk associated with airbag deployment. Thus, sufficient evidence was adduced at trial to support the instruction on failure-to-warn under
Finally, we find that Ohio case law does not support the district court‘s refusal to instruct the jury on the failure-to-warn law of defective products. Although the Ohio Supreme Court has affirmed a lower court‘s grant of summary judgment for the defendant in a products liability failure-to-warn claim when it found that no genuine issue of material fact existed as to whether the warnings and instructions in the manual were adequate to warn of the risk associated with the
In the present case, there has been no district court finding that the warnings were adequate as a matter of law. Under Ohio law, we decline to find the warnings adequate as well. The mere presence of defendants’ warnings that, if followed, may have been adequate does not eliminate the fact that a jury could find the existing warnings inadequate based on their form, manner of expression, or lack of exigency. See Seley, 423 N.E.2d at 837; see also Freas, 573 N.E.2d at 32 (cautioning that existence of warnings in manual may not be adequate per se where there is a duty to provide further warnings to the user of the product). Thus, the issue is not merely the existence of the warnings, but the factual issue of their content.
Because there is sufficient evidence that Volvo knew of a specific risk associated with the normal use of the product by small adults and children and evidence that this explicit risk was not part of the warnings or instructions under
IV. Consumer-Expectation Jury Instruction
Plaintiff claims error in the trial court‘s holding that, because “an ordinary consumer . . . would not know the technical considerations that influences the design of the
Ohio law provides product-liability plaintiffs with two theories of proving product-liability: 1) the consumer-expectation standard and 2) the risk-benefit standard. See Perkins v. Wilkinson Sword, Inc., 700 N.E.2d 1247, 1248 (Ohio 1998) (citing State Farm Fire & Cas. Co. v. Chrysler Corp., 523 N.E.2d 489, 495 (Ohio 1988)). The Ohio legislature codified these approaches in
(A) . . . a product is defective in design or formulation if either of the following applies:
(1) When it left the control of its manufacturer, the foreseeable risks associated with its design or formulation as determined pursuant to division (B) of this section exceeded the benefits associated with that design or formulation as determined pursuant to division (C) of this section;
(2) It is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.
With respect to products subject to the two tests, the Ohio Supreme Court has stressed that
these standards are not mutually exclusive, but instead constitute a single, two-pronged test for determining whether a product is defectively designed. . . . [A] product may be found defective in design even if it satisfies ordinary consumer expectations if the jury determines that the product‘s design embodies excessive preventable danger. In other words, if the jury concludes that one standard is not met, thе jury may consider the other standard.
Plaintiff‘s choice to proceed under the two distinct tests can be viewed as broadening the scope of product defects actionable under Ohio‘s products liability laws. Thus, the Ohio Supreme Court stated that “‘[t]he very existence of a risk/benefit analysis in the Ohio cause of action for design defect helps those plaintiffs who would otherwise lose in a consumer expeсtation case.‘” Perkins, 700 N.E.2d at 1248 (alterations in original) (quoting O‘REILLY & CODY, OHIO PRODUCTS LIABILITY MANUAL Section 6.08, 70-71 (1992)). In addition, we have previously found that the risk-benefit and consumer-expectation tests are not fungible; thus, a finding under one test does not imply a similar finding under the other test. See Jordan v. Paccar, Inc., 37 F.3d 1181, 1184 n.2 (6th Cir. 1994) (applying Ohio law and rejecting contention that a jury finding for defendant under the risk-benefit test implies that jury would have also found for defendant under consumer-benefit test).
Regarding the substance of the consumer-expectation test, the Ohio Supreme Court has stated that the test examines “what would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.”5 Leichtamer v. American Motors Corp., 424 N.E.2d 568, 570-71 (Ohio 1981). Under the consumer-exрectation test, a product may be proven to be in a defective condition if: (1) it is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, (2) the claimed defect was present when the product left the manufacturer; and (3) the claimed defect proximately caused the claimed injuries. Id. at 494.
The Ohio Supreme Court has stated that the consumer-expectation test may fail to reach product defects when the consumer “is ignorant of the product and has no expectation of its safety, or where a new product is involved and no
Following our reasoning in Sours and Jordan, and Ohio‘s reasoning in Leichtamer and Colboch, a consumer need only have an expectation in the normal operation and safety with respect to their airbag system operation to satisfy the consumer-expectation test. Accordingly, Ohio‘s consumer-expectation test has been applied to the roll-over stability of a sport utility vehicle, see Clay, 215 F.3d at 671, a vehicle‘s roof design, see Sours, 717 F.2d at 1515-16, a vehicle‘s roll-over bar, see Leichtamer, 424 N.E.2d at 576, and to a vehicle‘s airbag system, see Fisher, 13 F. Supp. 2d at 638-39. Under Ohio law, we find the trial court‘s findings with respect to the consumer‘s knowledge of the technical details of the airbag system are misplaced. Cf. Fisher, 13 F. Supp. 2d at 638-39; State Farm Fire & Cas. Co., 523 N.E.2d at 495.
Finally, we are unpersuaded by defendants’ citation to other jurisdiction‘s cases in which courts have rejected the consumer-expectation test as inapplicable to complicated non-
Following the applicable precedent and Ohio law of consumer-expectation,
V.
For the foregoing reasons, we REVERSE the district court‘s denial of plaintiff‘s requested instructions on the failure-to-warn and consumer-expectation test for product defect, and REMAND for a new trial in accordance with this opinion.
THOMAS H. HISRICH, Administrator of the Estate of Diana Zhang, Plaintiff-Appellant, v. VOLVO CARS OF NORTH AMERICA, INC.; VOLVO NORTH AMERICA CORPORATION, Defendants-Appellees.
No. 99-3426
RALPH B. GUY, JR., Circuit Judge, concurring in part and dissenting in part. I concur in all of the court‘s opinion except part III-A. I would hold that plaintiff waived his failure-to-warn claim and that on retrial this issue may not be submitted to the jury.
Shortly before trial plaintiff‘s counsel informed defense counsel that plaintiff was abandoning his failure-to-warn claim. This is attested to by the fact that plaintiff‘s trial brief did not set forth failure to warn as one of his theories. That such is the case is further demonstrated by defendants’ trial brief which stated:
Although Plaintiff has pled a claim under [O.R.C. Section 2307.76] asserting that the 1993 Volvo 850 GLT was defective because it lacked adequate warnings and instructions, counsel for Plaintiff has advised the undersigned that he does not intend for this claim to be submitted to the jury.
Perhaps of greater significance is the fact that the parties had an agreed-upon statement read to the jury during voir dire which made no mention of a failure-to-warn theory. The parties, in effect, stipulated to drop the failure-to-warn claim. The majority references the fact that the plaintiff did not amend his complaint; however, that is only done, if at all, if a claim is being added. To drop a claim there is no need to formally amend the complaint in writing. Defendants proceeded during trial on the basis of the failure-to-warn claim no longer being in the case. It was entirely appropriate for the defendants to do so. It is hard to conceive of a clearer
Notes
A product is defective under the consumer expectation test if the product is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Foreseeable uses of a product include those that might reasonably be expected but not all uses which could occur. You should decide whether the claimant‘s injury occurred as a direct result of using the product in a manner that was intended or reasonably foreseeable. If it was not so used, then the claimant has failed to prove the existence of a defect under the consumer expectation test. If the product was so used and was more dangerous than an ordinary consumer would expect, then the claimant has proved the existence of a defect under the consumer expectation test.